Johnnie Ray GRIMSLEY, Appellee, v. Ray M. DODSON, Sheriff; J. Marshall Coleman, Attorney General of Virginia, Appellants, 696 F.2d 303

WIDENER, Circuit Judge: This appeal arises from the grant of a writ of habeas corpus to Johnnie Ray Grimsley, a state prisoner in Virginia, petitioner below and appellee here. We reverse. In 1979, Grimsley was on state probation following 1973 convictions for grand larceny in Page and Rockingham Counties, Virginia. In September of that year, deputies from Page County, Virginia, accompanied by Grimsley’s probation officer, searched Grimsley’s residence pursuant to a search warrant. The search produced firearms and marijuana.

Grimsley was subsequently charged with possession of the marijuana, a controlled substance. At the criminal trial for possession of marijuana, Grimsley successfully moved to suppress the evidence seized during the search on the ground that the affidavit upon which the warrant was based was insufficient. The Commonwealth’s motion for nolle prosequi on the marijuana charge was then granted. The probation officer then sought to revoke Grimsley’s probation.

At the probation revocation hearing, evidence suppressed in the criminal proceedings was held admissible following a ruling by the trial judge that the exclusionary rule did not apply to probation revocation proceedings. Grimsley’s probation was revoked because he possessed firearms in violation of the conditions of his probation. Grimsley unsuccessfully sought an appeal of his probation revocation to the Virginia Supreme Court. Apparently no petition for certiorari was filed in the United States Supreme Court, at least the record does not reveal it.

Grimsley then sought a writ of habeas corpus in the district court on the ground that the suppressed evidence had been introduced at his probation revocation hearing in violation of his Fourth and Fourteenth Amendment rights. The district court agreed, concluding that our opinion in United States v. Workman, 585 F.2d 1205 (4th Cir.1978), which held the exclusionary rule applicable to federal probation revocation hearings, created a constitutional principle applicable to state courts. It granted a writ of habeas corpus to Grimsley. Grimsley v. Dodson, 523 F.Supp. 99 (W.D. Va.1981).

The Commonwealth appeals, arguing that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars the district court’s examination of Grimsley’s Fourth Amendment claims in a petition for federal habeas corpus relief. The district court rejected this argument, concluding that Stone was designed to prevent federal courts from reviewing state court determinations regarding the admissibility of evidence under the Fourth Amendment.

Here, it reasoned, a different situation existed because the state court had already ruled in Grimsley’s favor regarding the admissibility of the evidence and the question raised in the habeas corpus petition was the constitutional effect of that ruling. 523 F.Supp. at 103. We disagree and conclude that Stone v. Powell barred the district court from consideration of Grimsley’s Fourth Amendment claim. Stone v.

Powell, supra, marked, for most practical purposes, the end of federal court reconsideration of Fourth Amendment claims by way of habeas corpus petitions where the petitioner had an opportunity to litigate those claims in state court. The Court stated at 494, 96 S.Ct. at 3052 that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” (Footnotes omitted).

We think Stone applies to the case before us. Grimsley had an opportunity to litigate the introduction of the evidence at his probation revocation hearing. In fact, he vigorously sought its suppression. The state trial court ruled against Grimsley on the matter, which ruling was affirmed by the Virginia Supreme Court’s refusal to grant a writ of error.

Once the determination was made that Grimsley had the opportunity for a full and fair consideration of the question in state court and that such opportunity was not impaired, the district court should not have inquired further into the merits of a petitioner’s Fourth Amendment claim. See Doleman v. Muncy, 579 F.2d 1258 (4th Cir.1978). Grimsley nevertheless asks us to affirm on the district court’s conclusion that Workman ’s holding is a constitutional rule and thus binding upon the States. 523 F.Supp. at 103.

One difficulty with the district court’s conclusion is that the Supreme Court in Stone, at two places, explicitly decided that the exclusionary rule is “not a personal constitutional right.” 428 U.S. at 486, 96 S.Ct. at 3048. Rather, it is “a judicially created remedy.” 428 U.S. at 465, n. 37, 96 S.Ct. at 3053 n. 37. So all that Workman could have decided, and did decide, was that the exclusionary rule applied to Fourth Amendment violations in federal probation proceedings. Stone v.

Powell left the exclusionary rule intact in direct appeals in criminal proceedings, as the concurring opinion of the Chief Justice makes clear, 428 U.S. at 496, 96 S.Ct. at 3053 et seq., and the petitioner in this case was perfectly free to file his petition for certiorari in the United States Supreme Court had he so decided. The petitioner here admittedly had had full and fair litigation of his Fourth Amendment claim. Indeed, he was successful in securing the nolle prosequi of his indictment, almost certainly on that account.

He has presented his Fourth Amendment claim both to the trial court and the Virginia Supreme Court in the context of his probation revocation. The proceedings to revoke his probation on the previous larceny charges are no more than a continuation of the proceedings of those previous criminal convictions. In those proceedings, rulings on evidence obtained in an unconstitutional search or seizure would not have been subject to federal reexamination by way of habeas corpus, although the Fourth Amendment claim was subject to direct appeal.

Since federal habeas corpus relief would not be available on account of the illegally obtained evidence in a criminal proceeding, no reason exists to make it available where revocation of probation is involved. Indeed, if the two must be compared, it seems there is less reason to apply the exclusionary rule in a probation proceeding, for, while it is true that in both proceedings the liberty of the petitioner is at stake, in the criminal case the petitioner is also subjected to conviction of felony. Thus, we think that Stone v.

Powell does not permit a federal habeas corpus court to reexamine under the Fourth Amendment the admissibility of the evidence offered against the petitioner in his Virginia probation revocation proceedings, and we hold that the exclusionary rule does not apply to those proceedings. The judgment of the district court is accordingly REVERSED. . The transcripts of the Page County hearing on probation revocation were introduced by agreement in the later Rockingham County proceeding. The proceedings were in all respects the same for any purpose considered here.